Citation Nr: 21064715 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 18-32 921 DATE: October 21, 2021 ORDER Entitlement to service connection for tinnitus is denied. FINDING OF FACT The preponderance of the evidence is against finding that tinnitus began during active service or is otherwise related to an in-service injury or disease. The Veteran's tinnitus was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty as a light vehicle driver in the United States Army from January 1964 until his honorable discharge in January 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision of the Regional Office of the Department of Veterans Affairs (VA). In April 2020, the Board remanded the case to the Regional Office for further development. Specifically, the Board directed the Regional Office to obtain an addendum opinion. The claim was returned to the Board and again remanded in July 2021 for another addendum opinion. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service the so-called "nexus" requirement. Holton v Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Furthermore, in deciding whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2014); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. Id. 1. Entitlement to service connection for tinnitus. The Veteran asserts that he developed tinnitus due to noise exposure in service. Although in May 2021 he denied having "ringing, humming, buzzing, or any other noise in his head or ears," the Board will give the Veteran the benefit of the doubt and find that he has a current disability. As a layperson, he is capable of observing tinnitus. Jandreau v. Nicholson, 492 F.3d 1372, 1377. Indeed, tinnitus may only be observed by the veteran and cannot be objectively tested for by an examiner. See Charles v. Principi, 16 Vet. App. 370, 374-375 (2002). Accordingly, the first element of service connection is established. The Veteran served as a light vehicle driver according to his DD-214. He reported experiencing exposure to gun fire, helicopters, and airplanes in service without auditory protection. As such, he has met the second element of service connection. Unfortunately, there is no nexus or link between his tinnitus and service. The Veteran did not report any symptoms of tinnitus in service and was not able to state when his symptoms began. The May 2021 examiner explained, "Etiology is typically inferred by patient history and a review of medical records. It is widely accepted that noise-induced tinnitus occurs at the time of the noise exposure, and does not develop years later." Additionally, he had intercurrent causes that would explain his current tinnitus. First, he reported working in a lumber yard without auditory protection, and second, he reported hunting after service. See August 2021 VA Examination. He does not have a history of complaints or treatment for tinnitus that would connect his disability to service. As such, his claim for entitlement to service connection for tinnitus on a direct basis is denied. Service connection for certain chronic diseases, including tinnitus, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a chronic disease under 3.309(a) is shown as such in service or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought." Walker, 708 F.3d at 1336. Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. Tinnitus is not specifically included in the diseases listed in § 3.309(a) but may be considered under "other organic diseases of the nervous system." As a result, a veteran may be awarded service connection for tinnitus as a chronic disease under § 3.307(a). Unfortunately, there is no evidence in this case that his tinnitus manifested in service or within one year of discharge to a degree of 10 percent. Not only can the Veteran not pinpoint when his tinnitus began, he stated in May 2021 that he did not have any symptoms of tinnitus. Furthermore, there are no complaints of tinnitus until he filed his claim. As such, his claim does not qualify for a presumption based on the above provisions of law. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Johnston, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.